Citation Nr: 1516516 Decision Date: 04/16/15 Archive Date: 04/24/15 DOCKET NO. 06-05 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for hypertension. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a heart condition. 3. Entitlement to a disability ratings for chronic low back strain, degenerative disc disease and facet degenerative joint disease, currently evaluated as 40 percent prior to April 1, 2014, and as 20 percent disabling thereafter, to include the propriety of a reduction from 40 percent to 20 percent, effective April 1, 2014. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Calvin D. Hansen, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Procedural History In November 2005, the RO denied the Veteran's claims of entitlement to service connection for bilateral hearing, tinnitus, and high blood pressure. In February 2006, the RO determined that new and material evidence had not been submitted to reopen the Veteran's previously denied claim for service connection for a heart condition. In July 2008, the Board determined that the Veteran's claim to reopen a previously denied claim for service connection for a heart condition was not in appellate status. The Board also, in relevant part, denied entitlement to service connection for bilateral hearing loss and tinnitus. In a February 2010 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's July 2008 decision with respect to the aforementioned issues, and remanded the claims for readjuciation consistent with the Court's memorandum decision. In November 2009, the RO denied the Veteran's claim for entitlement to a TDIU. In November 2010, the Board, in relevant part, remanded the Veteran's claims of entitlement to a TDIU and service connection for bilateral hearing loss, tinnitus, and a cardiovascular disability to include whether new and material evidence had been submitted to reopen a previously disallowed claim for service connection for a heart condition and whether service connection for high blood pressure, to include as secondary to service-connected disability, was warranted, for additional development. These issues have now been returned to the Board for further appellate consideration. In April 2012, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) as to the issue of entitlement to a TDIU. A transcript of this hearing is associated with the claims file. Finally, in August 2013, the RO proposed to decrease the assigned evaluation for service connection chronic low back strain with left sided sciatica, degenerative disc disease and facet degenerative joint disease from 40 percent to 10 percent. In January 2014, the RO granted a separate disability rating for the Veteran's service-connected left sided sciatica associated with his service-connected chronic lumbar strain, degenerative disc disease and facet degenerative joint disease, effective December 10, 2013. The RO combined the assigned disability rating for left sided sciatica with the assigned evaluation for the Veteran's service-connected laceration of the left heel, healed with dysesthesias and loss of sensation in a sural nerve distribution. Evaluation of laceration of left heel, healed with dysesthesias and loss of sensation in sural nerve distribution and left sided sciatic secondary to chronic low back strain, which was evaluated as 10 percent disabling, was increased to 20 percent disabling, effective December 10, 2013. The RO also decreased the Veteran's assigned 40 percent disability rating for chronic low back strain, degenerative disc disease and facet degenerative joint disease from 40 percent to 20 percent, effective April 1, 2014. The Veteran has perfected an appeal for increase for his service-connected low back disability and as to the propriety of the reduction in the assigned evaluation of his service-connected low back disability from 40 percent to 20 percent. As there is no indication that the Veteran is in disagreement with the separate disability rating assigned for left sided sciatica, neurological manifestations of the left lower extremity associated with the Veteran's service-connected thoracolumbar spine disability is not currently before the Board on appeal and therefore will not be addressed herein. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for bilateral hearing loss and tinnitus, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is shown to have had diastolic blood pressure readings of predominantly 90 or more during service and during an October 1969 VA examination within one year of his discharge from service. 2. A claim for service connection for heart disease was denied in an unappealed November 1969 rating decision. 3. Evidence received since the November 1969 RO decision with regard to a claim of entitlement to service connection for a heart condition is cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a heart condition, and does not raise a reasonable possibility of substantiating the claim. 4. In a January 2014 rating decision, the RO reduced the disability rating for chronic lumbar strain, degenerative disc disease, and facet degenerative joint disease from 40 percent to 20 percent, effective April 1, 2014. 5. At the time of the reduction in the assigned disability rating from 40 percent to 20 percent in April 1, 2014, the competent medical evidence did not clearly demonstrate that a material improvement in the severity of the Veteran's service-connected chronic low back strain, degenerative disc disease and facet degenerative joint disease disability had actually occurred and that any such improvement would be maintained under ordinary conditions of life. 6. The objective clinical findings show that during the rating period on appeal do not reflect that the Veteran's chronic low back strain, degenerative disc disease and facet degenerative joint disease has been manifested by ankylosis of the thoracolumbar spine or incapacitating episodes of intervertebral disc disease of the thoracolumbar spine having a total duration of at least 6 weeks during the past 12 months at any time during the claim. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hypertension are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2014). 2. The November 1969 rating decision that denied entitlement to service connection for heart disease is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2014). 3. New and material evidence to reopen the claim for service connection for a heart condition has not been received. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.102, 30156(a), 3.159 (2014). 4. The reduction in the rating assigned for the Veteran' s chronic low back strain, degenerative disc disease, and facet degenerative joint disease from 40 percent to 20 percent, effective April 1, 2014, was not warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 4.1, 4.2, 4.10, 4.13, 4.71a, Diagnostic Code 5237 (2014). 5. The criteria for a disability rating in excess of 40 percent for chronic low back strain, degenerative disc disease, and facet degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a. Diagnostic Code 5237 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist In light of the favorable dispositions reached herein with regard to the Veteran's claims for service connection for hypertension and as to the propriety of the reduction in disability rating for chronic low back strain, degenerative disc disease and facet degenerative joint disease from 40 percent to 20 percent, effective April 1, 2014, the Board finds that no further discussion as to VA's compliance with its duties to notify and assist the Veteran with respect to those claims is warranted. With regard to the Veteran's petition to reopen his previously denied claim of entitlement to service connection for a heart condition and his claim for increase for chronic low back strain, degenerative disc disease, and facet degenerative joint disease, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). December 2010 (petition to reopen) and September 2013 (increase) letters satisfied duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice letters informed the Veteran which evidence was to be provided by him and which evidence VA would attempt to obtain on his behalf. The letters notified the Veteran of the information and evidence necessary to establish his petition to reopen a previously denied claim for service connection for a heart condition and for increase for his service-connected back disability. The letters also notified the Veteran of regulations pertinent to the establishment of effective dates and of the disability ratings. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims were most recently readjudicated in a September 2013 supplemental statement of the case with respect to the petition to reopen and in a March 2013 statement of the case with respect to the claim for increase. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has also met its duty to assist the Veteran in the development of the claims. All identified service and post-service treatment records have been obtained and associated with the claims file. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159 (2014). In addition, the Veteran was afforded a VA medical examinations to determine the nature and etiology of any currently diagnosed heart condition in January 2011 and to determine the current nature and severity of his service-connected low back disability in November 2012 and December 2013. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A medical examination is adequate "where it is based upon consideration of the Veteran's prior medical history and examination and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet App. 120, 123 (2007). The VA examiners who conducted the January 2011 VA heart examination and the November 2012 and December 2013 VA spine examinations each reviewed the claims file, considered Veteran's description and history of the resective disabilities, his documented and reported history of symptoms, conducted a thorough examination and provided a detailed report of the claimed disability. There is no indication of any additional relevant evidence or information that has not already been obtained. The examination reports contain sufficient bases and findings for the Board to render a decision in this appeal. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finally notes that the record reflects that the originating agency has complied with the Board's November 2010 remand directives with respect to the petition to reopen a claim for service connection for a heart condition. II. Service Connection - Hypertension Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for certain chronic diseases that are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Regulations provide that hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran contends that his currently diagnosed hypertension is etiologically related to his military service or that it is caused or aggravated by pain associated with his service-connected disabilities. Based upon the evidence of record, the Board finds that a hypertension disability for VA purposes was shown to have been incurred during active service and may be presumed to have had onset during service. Specifically, the Veteran's service treatment records show that his blood pressure was recorded as 122/90 during enlistment examination in November 1966, and as 124/91 during separation examination in October 1968. During an October 1969 VA cardiovascular examination, his blood pressure was recorded as 140/108 while standing, 140/96 while sitting, and 126/84 while lying down. In a February 1998 statement, Dr. TWV, M.D., noted that the Veteran had recently developed symptoms of hypertension of unknown etiology. He stated that the Veteran was under the care of a cardiologist in Lincoln, with no physical risk factors identified as an etiology. He stated that there was concern that prior injuries, because of the Veteran's advancing age, had a possible implication in development of hypertension symptoms that required medical management. VA treatment records show that in April 2000, the Veteran reported a history of hypertension and hyperlipidemia, both treated for approximately two and a half years prior and of an unknown duration before that. Given that the Veteran's blood pressure readings during service and during VA cardiovascular examination in October 1969, within 1 year of his discharge from service, show diastolic blood pressure readings of predominately 90 or more, the Board finds that after resolving any doubt in favor of the Veteran, his currently diagnosed hypertension had onset during service and pay be presumed to have been incurred during service. Thus, his claim for service connection for hypertension may be granted. As this determination is favorable to the Veteran, no further discussion of the Veteran's contention that hypertension is secondary to service-connected disabilities is required. III. Petition to Reopen The RO denied the Veteran's original claim for service connection for heart disease on the merits in a November 1969 rating decision on the basis the claimed heart disability was not shown during service or at any time thereafter. The Veteran was provided notice of that decision in a November 1969 notice letter, which indicated that his claimed heart disease disability was not shown by the evidence of record and was not incurred in or aggravated by service. The Veteran did not file an appeal and this decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2014). The Veteran subsequently filed an application for service connection for "high blood pressure" in August 2005. In a rating decision dated November 3, 2005, the RO denied service connection for high blood pressure (issue #6). The Veteran was provided notice of that rating decision on November 15, 2005. On November 21, 2005, VA received correspondence from the Veteran, which was dated November 18, 2005, and was entitled "Notice of Disagreement," which documented his disagreement with "ISSUE 6: Entitlement to service connection for a heart condition." The RO apparently interpreted the Veteran's correspondence as a petition to reopen service connection for a heart condition. In a February 2006 rating decision, the RO stated that a "new claim" for benefits was received from the Veteran on November 21, 2005. The RO denied entitlement to service connection for a heart condition because the evidence submitted was not new and material. In July 2008, the Board clarified that claims for service connection for high blood pressure and to reopen a claim for service connection for a heart condition were not in appellate status. The Board reasoned that such claims were denied by the RO in November 2005 and February 2006 rating decisions, and to the Board's knowledge, the Veteran had not expressed disagreement with those determinations. In a February 2010 memorandum decision, however, the Court determined that the Board's finding that the heart condition "was not in appellate status" was clearly erroneous. The Court determined that both the November 2005 and February 2006 rating decisions denied the Veteran's "heart condition claim." The Court stated that correspondence from the Veteran dated November 18, 2005, which was entitled "Notice of Disagreement" and explicitly noted disagreement with the denial of "ISSUE 6: Entitlement to service connection for heart condition," satisfied all requirements of a NOD as set forth in 38 C.F.R. § 20.201. Thus, the RO was required to issue a statement of the case regarding the denial of the reopening of his heart condition claim. The Court therefore set aside the Board's finding in the July 2008 Board decision that the heart condition claim was not on appeal and remanded the matter for adjudication of the claim after issuance of a SOC. Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase 'raises a reasonable possibility of substantiating the claim' as 'enabling rather than precluding reopening.' The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which 'does not require new and material evidence as to each previously unproven element of a claim.' Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Having carefully reviewed the record, the Board finds that new and material has not been submitted to reopen the previously denied claim for service connection for a heart condition. The claim was initially denied in November 1969 because the evidence failed to show a diagnosis of a heart condition that was incurred in or aggravated by service. At that time, the evidence of record consisted of the Veteran's service treatment records; an August 1969 claim for service connection; reports of October 1969 VA neuropsychiatric, orthopedic and cardiovascular examinations; and report of a November 1969 VA general medical examination. The Veteran's service treatment records show that in November 1966 and October 1968 reports of medical history for induction and separation, he denied any history of high or low blood pressure, shortness of breath, pain or pressure in chest, chronic cough, and palpitation or pounding heart. Clinical evaluation of his heart, lungs, chest, and vascular system was reported as normal during November 1966 induction and October 1968 separation examinations. Chest x-rays during November 1966 induction and October 1968 separation examinations were reported as negative. On induction examination in November 1966, the Veteran's blood pressure on sitting was 122/90 and his sitting pulse was 74. On separation examination in October 1968, his blood pressure was 124/91 and his sitting pulse was 72. No defects or diagnoses pertaining to the Veteran's heart were documented. In his August 1969 claim for service connection for heart disease, the Veteran reported that he broke his left clavicle during service, which had been giving him problems since 10 months prior. He stated that it felt like some sort of pressure was being put on his heart because of it. During an October 1969 VA cardiovascular examination the Veteran stated that occasionally his heart seemed to beat hard, but apparently it did not give him any concern. He denied having ever developed any cardiovascular complaints during service and ever having been examined for his heart that he could recall. He reported that his weight had fluctuated slightly (4 to 5 pounds). There was no history of chest pain, cough, edema, headaches or dizzy spells. He was on no special diet and his breathing was normal with activity. He reported that he smoked three-quarters of a pack of cigarettes a day, drank an occasional beer, and that he did not drink coffee. Physical examination showed that he was well developed and nourished; not acutely ill. His blood pressure was 140/108 standing, 140/96 sitting, and 126/84 lying down. His pulse was 80 and regular. There were no abnormal pulsations in the neck or in the peripheral arteries of his extremities. There was no evidence of pedal edema. His lungs were resonate to percussion and no rales were heard on auscultation. There were no murmurs or abnormal heart sounds, which were described as of good quality and regular rhythm. The apex beat was in the midclavicular line, 5th interspace. Diagnostic assessment was organic heart disease not found at this time. During an October 1969 VA neuropsychiatric examination, the Veteran reported that he felt good, but that at times he became aware of his heart pounding, which lasted from a few minutes to an hour before it gradually cleared up. During an October 1969 special orthopedic examination it was noted that the Veteran fractured his left clavicle during an in-service motorcycle accident. He reported occasional dull, achy pain in his left shoulder, perceived weakness of his left arm in relation to his right arm on attempting to lift anything, popping on movement of his left shoulder joint, and awakening to left shoulder pain when sleeping on his left side. Physical examination of the left shoulder showed no gross deformity of the left clavicle. The left shoulder joint demonstrated full range of motion in all directions and there was no audible crepitation on movements. The examiner diagnosed simple, old, well healed fracture of the left clavicle with symptomatic secondary traumatic arthritis of the left shoulder. An October 23, 1969, report of chest x-ray documents that chest x-ray performed on October 1, 1969, revealed the heart to be at the upper border of size, with a transverse diameter of 145 mm, 13 percent above average. Lung fields were essentially clear and there was a moderate residual deformity of the healed fracture of the mid shaft of the left clavicle. The left shoulder girdle appeared within normal limits. Nevertheless, report of a November 1969 VA general medical examination shows diagnostic assessment was organic heart disease not found. Subsequent evidentiary submissions, lay and medical, do not cure any prior evidentiary defect. That is, evidence submitted in conjunction with and in support of the 2005 claim to reopen does not document the presence of a heart condition that is etiologically related to the Veteran's miliary service or his service-connected disabilities. In that regard, in an August 1976 claim for increase for service-connected left clavicle and shoulder disability, the Veteran reported that his initial claim for compensation in August 1969 was made to determine why he had a tingling sensation in his left shoulder area, which seemed to him to be putting some type of pressure on his heart. He stated that he was relieved when he learned that it was arthritis. Report of an October 1976 VA orthopedic examination documents the Veteran reported that he got some pain over the upper part of the left side of his chest, especially when doing labor intensive work such as mowing the lawn. He reported that he had been seen by a VA cardiologist and orthopedic surgeon and was told that he had some arthritis secondary to service-connected fracture of his left clavicle. Chest x-ray was negative and showed the heart to be of normal size and lungs clear. The examiner opined that the Veteran's pain in the upper left side of the chest is most probably soft tissue connected as he had a malunited fracture of the lateral part of the left clavicle with no definite osteoarthritis in the associated joints and the left shoulder and completely painless, full range of motion. During VA examination for a heart condition in January 2011, the Veteran mentioned that he had been diagnosed with high blood pressure 8 to 10 years prior. He denied ever having been diagnosed with coronary artery disease, angina chest pain, myocardial infarction, or any symptoms leading to diagnosis of heart disease. There was no history of myocardial infarction, rheumatic fever, hypertensive heart disease, heart rhythm disturbance, valvular heart disease including prosthetic valve, congestive heart failure, other heart disease, angina, dizziness, syncope, fatigue, and dyspnea. The examiner noted that the Veteran apparently confused the issue of high blood pressure (hypertension) with heart disease. He had never been treated for heart disease, but he had been treated for essential hypertension since 2000 for which he had been taking medication. The Veteran denied any previous diagnosis of heart disease or having any current symptoms of heart disease. Cardiac examination findings showed no evidence of congestive heart failure or pulmonary hypertension. S1 and S2 heart sounds were present. There were no extra heart sounds. Rhythm was regular. EKG indicated nonspecific ST-T changes. Stress test was not indicated or performed as the Veteran had never been diagnosed with heart disease nor did he have symptoms of heart disease. Heart size was normal as determined by physical examination and EKG. The examiner diagnosed essential hypertension without history of any known heart disease. While the Veteran has submitted additional records showing treatment for a claimed heart condition, this information is essentially cumulative of information of record at the time of the prior denial. To the extent that the Veteran is asserting that he incurred a heart condition during service or immediately thereafter as a result of injury sustained during service, such contentions were previously of record and considered at the time of the prior denial. Thus, this information is merely cumulative of information previously of record. The evidence is not new and essentially duplicative of evidence previously before VA decision makers at the time of the last final adjudication. In addition, while entitlement to service connection for hypertension was granted in this decision, the January 2011 VA examiner explicitly stated that there was no history of diagnosis of hypertensive heart disease. The Board acknowledges that in accordance with the Board's November 2010 remand of the claim, the Veteran's service personnel records were requested and associated with the claims file in March 2011. While the Veteran's service personnel records are new in that they had not previously been reviewed by VA decision makers, they are not material. Specifically, the Veteran's service personnel records are not relevant to his claim for service connection for a heart condition in that they contain no information or evidence pertaining to the presence or absence of the claimed heart condition at any time. 38 C.F.R. § 3.156(c). Thus, new and material evidence to reopen the previously disallowed claim for service connection for a heart condition has not been submitted. Accordingly, the petition to reopen a claim for service connection for a heart condition is denied. IV. Rating Reduction The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2014). When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Brown v. Brown, 5 Vet. App. 413, 421 (1993). Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(c), however, specify that the provisions of 38 C.F.R. § 3.344(a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities that have not become stabilized and are likely to improve. In November 2010, the Board granted an increased initial 40 percent disability rating for the Veteran's chronic low back strain with left sided sciatica, degenerative disc disease and facet degenerative joint disease, effective May 26, 2009. In January 2014, the RO reduced the rating for chronic low back strain, degenerative disc disease and facet degenerative joint disease from 40 percent to 20 percent disabling, effective April 1, 2014. Therefore, the greater protections, set forth in 38 C.F.R. § 3.344, do not apply in this case because the 40 percent disability rating for chronic lumbar strain with degenerative disc disease and facet degenerative joint disease was not in effect for five or more years at the time of the reduction. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In this case, a letter dated September 10, 2013, informed the Veteran of a proposed reduction in the rating assigned for his chronic low back strain with left sided sciatica, degenerative disc disease and facet degenerative joint disease. He was afforded 60 days to respond. Thereafter, the RO promulgated a rating decision in January 2014, implementing the proposed reduction from 40 percent to 20 percent, effective April 1, 2014. The RO properly applied the regulations regarding the procedure for notification of reductions in ratings. The question that remains is whether the RO correctly applied the substantive law and regulations regarding a reduction. The RO in essence made a determination that there was an improvement in the disability in that the RO found that the medical evidence did not show lumbosacral spine range of motion findings to support a disability rating in excess of 20 percent. The RO, however, did not make a specific determination that there is an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. Moreover, although the RO included 38 C.F.R. §§ 4.1 and 4.2 in a March 2014 statement of the case, the RO did not apply 38 C.F.R. §§ 4.1, 4.2, 4.10, or Schafrath. The RO cited VA examination reports dated in March 2006, January 2011, November 2012, and December 2013 in support of the reduction. There is no indication that report of the 2009 VA examination, which was the basis of the Board's grant of an initial 40 percent disability rating, was considered. In the November 2010 Board decision that granted an initial 40 percent disability rating for the Veteran's chronic low back strain with left sided sciatica, degenerative disc disease, and facet degenerative joint disease, the Board noted that during VA examination in 2009, flexion of the lumbar spine was to 40 degrees. Nevertheless, the Board observed that the evidence showed that the Veteran's low back condition resulted in significant functional impairment. For example, the October 2009 VA examiner noted objective evidence of pain, spasm, and severe flare-ups. Spasms were of such severity as to cause abnormal gait or abnormal spinal contour. Flare-ups occurred every 2 to 3 weeks and lasted for 1 to 2 days. The examiner also noted four episodes of incapacitating episodes during the past 12 months. The Board observed that although the incapacitating episodes were not of the severity and frequency to evaluate the disability under Diagnostic Code 5243, the fact that they occurred was a significant factor in determining the severity of the Veteran's low back disability. After application of the Court's guidance in DeLuca and affording the Veteran the benefit of the doubt, the Board found that the extent of functional loss was more comparable to a 40 percent rating, but no higher, under the pertinent rating criteria. Moreover, the January 2011 VA examination on which the reduction was based at least in part did not address the presence of flare-ups or whether there was additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. Report of the November 2012 VA examination showed improved range of motion findings of the Veteran's thoracolumbar spine, but again noted the Veteran's report of flare-ups of thoracolumbar spine symptoms that impacted function of the thoracolumbar spine with prolonged standing. Report of a private September 2013 orthopedic evaluation from Dr. SJV noted decreased range of motion of the thoracolumbar spine. Dr. SJV noted findings on lumbosacral spine films and stated that the Veteran had marked degenerative changes of his lumbar spine with progressive changes on imaging studies and marked limitation in thoracolumbar spine range of motion. He stated that based on his expertise as an orthopedic surgeon, he did not see how the Veteran's previous level of disability could be negated. He stated that the Veteran's degenerative lumbar findings are progressive in nature, not regressive, and if anything will continue to get worse over time, not better. In an October 2013 letter, the Veteran's private chiropractor noted that since he began providing chiropractic care for the Veteran in August 2013, it was clear that the Veteran's back condition had worsened. The Veteran had reported more and more difficulty with his activities of daily living such as sleeping, grooming, and lifting (grandchildren, groceries, tools in garage, using the restroom, and using the restroom and getting up from the toilet). He stated that objective findings were most alarming and showed passive range of motion further limited than previous findings in August 2013 with increased pain during range of motion and motion below normal standards of a male the Veteran's age. Standardized low back disability index (Revised Oswestry Disability Index for low back pain and dysfunction) revealed a functional rating score of 70 percent (very severe), which represented a 16 percent negative change since prior visit in August 2013. He stated that lifting capacity and sleep were two factors that showed the most dysfunction. During VA examination in December 2013, the Veteran reported daily back pain and flare-ups that impacted function of the thoracolumbar spine with activities such as standing, bending, walking, and lifting. There was additional limitation in range of motion of the thoracolumbar spine following repetitive use testing with forward flexion limited to 55 degrees, and right and left lateral flexion each to 20 degrees. Functional loss and/or functional impairment of the thoracolumbar spine was reported due to less movement than normal, weakened movement, pain on movement, and lack of endurance. The examiner stated that pan and weakness could significantly limit functional ability of the thoracolumbar spine during flare-ups or when the spine is used repeatedly over a period of time. He stated, that additional limitation due to pain, weakness, fatigability, or incoordination is feasible and likely to occur; however, it is not possible to determine actual degrees of additional limitation of range of motion due to pain, weakness on use, fatigability, or incoordination during flare-ups as an examiner must be present to objectively and clearly determine these additional losses, if present. The RO did not make a determination that there had been an actual change in the disability and not merely a difference in the thoroughness of the examinations. See 38 C.F.R. § 4.13. In addition, the RO did not indicate that it had reviewed the entire recorded history of the disability when they determined that evidence reflects an actual change in the disability. In this regard, the January 2014 rating decision does not reflect that the RO considered the 2009 VA spine examination. Therefore, the RO did not ascertain based upon review of the entire recorded history of the low back disability whether the evidence reflects an actual change in the disability and whether the examination reports are based upon a thorough examination. Brown, 5 Vet. App. at 421. These requirements for evaluation of the complete medical history of the claimant's disability operate to protect claimants against adverse decisions based on a single incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the disability. Schafrath, 1 Vet. App. at 594. Whether or not a disability has improved cannot be determined without reference to prior records detailing the history of the disability. Id. In short, at the time of the reduction in the assigned disability rating from 40 to 20 percent, effective April 1, 2014, the competent medical evidence did not clearly demonstrate that a material improvement in the severity of the Veteran's service-connected low back disability had actually occurred and that any such improvement would be maintained under ordinary conditions of life. V. Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Id. at 119. The analysis in this decision is therefore undertaken with consideration of the possibility that different additional ratings may be warranted for different time periods. Pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). It is not expected that all cases will show all the findings specified; however, in all instances it is expected that there will be sufficient findings as to identify the disease and the disability therefrom, and to coordinate the rating with the identified impairment of function. 38 C.F.R. § 4.21. Where there is a question as to which of two rating evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Id. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Painful motion with the joint or particular pathology, which produces a disability, warrants the minimum compensation. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's claim for increase stems from a mandated special review of his claims file in August 2013 and rating decision that proposed to decrease his assigned disability rating for service-connected chronic low back strain with left sided sciatica, degenerative disc disease and facet degenerative joint disease from 40 percent to 10 percent. In his September 2013 notice of disagreement, the Veteran stated that his back condition had been steadily deteriorating since undergoing back surgery in 1986. He reported that he had received chiropractic treatment since early 2013 to manage his back pain and that was recently referred to VA physical therapy by his VA primary care physician for management and relief of back pain. He suggested that the November 2012 VA examination of his was inadequate due to briefness and because diagnostic imaging studies were not performed so that a sound medical evaluation of his back could be completed. He reported that he reduced the amount of hours that he worked at his part-time job as a store clerk and that he quit working in January 2013 due at least in part to back pain. He stated that his medical condition is getting worse. The General Formula for Diseases and Injuries of the Spine established specific values for spinal motion, see 38 C.F.R. § 4.71a, Plate V (2014), and set forth objective criteria for rating limitation of thoracolumbar motion, which is the primary basis for rating orthopedic symptoms of spine disabilities. Under the General Formula, for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine is limited to 30 degrees or less. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula (2014). Under Note: (1) of 38 C.F.R. § 4.71a, VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Under 38 C.F.R. § 4.71a (Plate V) Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under that Formula, a 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) of 38 C.F.R. § 4.71a, Diagnostic Code 5243, defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment of the basis of incapacitating episodes or under the general Rating Formula for Diseases and Injuries of the Spine, whichever methods results in a higher evaluation for that segment. Id. Turning to the evidence, in August 2012, the Veteran's employer indicated that the Veteran had worked part-time as a sales clerk and doing deposits since January 2008. In February 2012, he cut his hours from 25 to 30 hours a week to 12 to 15 hours a week due at least in part to his service-connected back disability. During VA examination in November 2012, the Veteran reported flare-ups of back symptoms that impacted function of his thoracolumbar spine with prolonged standing. Range of motion of his thoracolumbar spine was forward flexion to 70 degrees with objective evidence of painful motion beginning at 60 degrees; extension to 20 degrees with pain at 20 degrees; right lateral flexion to 20 degrees with pain at 20 degrees; left lateral flexion to 15 degrees with pain at 15 degrees; right lateral rotation to 15 degrees with pain at 15 degrees; and left lateral rotation to 15 degrees with pain at 15 degrees. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. There was functional loss and functional impairment of the thoracolumbar spine due to contributing factors of pain less movement than normal and pain on movement. The examiner stated that the Veteran did not have IVDS of the thoracolumbar spine. The examiner stated that the Veteran's back condition impacts his ability to work in that he is not able to engage in prolonged standing. The examiner stated that the Veteran's functional limitations could best be described as difficulty with prolonged standing, prolonged ambulation, and repetitive lumbar bending. Following a VA physical therapy consultation in September 2013, diagnostic assessment included increased low back pain, decreased trunk range of motion, decrease lower extremity strength, and leg length discrepancy, which lead to functional limitations in ambulating, lifting and in recreational activities like running and golfing. It was noted that the Veteran's signs and symptoms were consistent with disc herniation and low back degeneration and that he would possibly benefit from a heel lift for leg length discrepancy. He was planned to attend physical therapy one to two times a week for a total of 16 sessions. A December 2013 VA physical therapy discharge note noted problems of increased low back pain, decreased trunk range of motion, decreased lower extremity strength, and leg length discrepancy. It was noted that the Veteran had reached a plateau in progress and was appropriate for discharge from physical therapy at that time and no further gains were likely. A September 2013 treatment note from Dr. SJV, M.D., a private orthopedic surgeon, showed a chief complaint of low back pain that the Veteran rated as 9 out of 10 with 10 a worst in terms of severity. Physical examination of the Veteran's lumbosacral spine showed decreased lordosis and tenderness to palpation in the lower lumbar spine. Range of motion of the thoracolumbar spine was forward flexion to 40 degrees due to pain; extension reduced to less than 10 degrees due to pain; right and left lateral flexion each to 15 degrees; right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. Lumbosacral spine films showed decreased lordosis, degenerative disc disease at L4-5 and L5-S1, spurring, facet arthropathy, and minimal motion with flexion and extension. Diagnostic assessment was lumbago and degeneration of the lumbar intervertebral disc. Dr. SJV stated that the Veteran had marked degenerative changes in his lumbar spine with progressive changes on imaging studies and marked limitation in thoracolumbar spine range of motion. In an October 2013 treatment summary, the Veteran's private chiropractor, BRR, noted that since he began providing chiropractic treatment for the Veteran's complaints of low back pain in August 2013, indicated that the Veteran had reported more and more difficulty with activities of daily living such as sleeping, grooming, and lifting (grandchildren, groceries, tools in garage, using the restroom, and using the restroom and getting up from the toilet). He stated that objective findings were most alarming and showed passive range of motion further limited than previous findings in August 2013 with increase pain during motion and motion below normal standards of a male the Veteran's age. He stated that standardized low back disability index (Revised Oswestry Disability Index for low back pain and dysfunction) revealed a functional rating score of 70 percent (very severe), which represented a 16 percent negative change since prior visit in August 2013. He stated that lifting capacity and sleep were two factors that showed the most dysfunction. During VA examination in December 2013, the Veteran reported daily back pain and flare-ups that impacted function of the thoracolumbar spine with activities such as standing, bending, walking, and lifting. Range of motion of the thoracolumbar spine was forward flexion to 60 degrees with objective evidence of painful motion beginning at 50 degrees; extension to 20 degrees with objective evidence of painful motion beginning at 20 degrees; right lateral flexion to 25 degrees without objective evidence of painful motion; left lateral flexion to 25 degrees without objective evidence of painful motion; right lateral rotation to 30 degrees without objective evidence of painful motion; and left lateral rotation to 30 degrees without objective evidence of painful motion. There was additional limitation in range of motion of the thoracolumbar spine following repetitive use testing with forward flexion to 55 degrees, and right and left lateral flexion each to 20 degrees. Functional loss and/or functional impairment of the thoracolumbar spine was reported due to less movement than normal, weakened movement, pain on movement, and lack of endurance. The examiner stated that the while the Veteran has intervertebral disc syndrome (IVDS) of the thoracolumbar spine, he had not had any incapacitating episodes over the past 12 months due to IVDS. The examiner stated that the Veteran's thoracolumbar spine condition impacted his ability to work in that the Veteran reported that he last worked in December 2012 and that he had to stop working because he had difficulty standing, walking, and lifting. The examiner stated that pain and weakness could significantly limit functional ability of the Veteran's thoracolumbar spine during flare-ups or when the spine is used repeatedly over a period of time. He stated, that additional limitation due to pain, weakness, fatigability, or incoordination is feasible and likely to occur; however, he stated that it is not possible to determine actual degrees of additional limitation of range of motion due to pain, weakness on use, fatigability, or incoordination during flare-ups as an examiner must be present to objectively and clearly determine these additional losses, if present. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to a disability rating in excess of 40 percent for chronic low back strain, degenerative disc disease and facet degenerative joint disease. In order to warrant a 50 percent evaluation, the evidence must show unfavorable ankylosis of the thoracolumbar spine. Moreover, even though the Veteran has reported increased symptoms during flare-ups, there is no competent evidence, even from the Veteran, that his thoracolumbar spine is ankylosed, much less unfavorably ankylosed during periods of flare-up. Similarly, while there was additional limitation in range of motion of the thoracolumbar spine following repetitive use during recent testing, the Veteran was still able to perform forward flexion to 55 degrees, and right and left lateral flexion each to 20 degrees. Thus, he did not show symptoms consistent with favorable anklyosis during examination. The evidence noted above shows that the Veteran's thoracolumbar spine retains motion in every plane of movement throughout the entire rating period. Thus, no more than a 40 percent evaluation is warranted under the General Rating Code at any time during the claim. Alternatively, regarding an increased evaluation under the formula for evaluating intervertebral disc syndrome, the only evidence of record indicative of this condition is the December 2013 VA examiner's statement that while the Veteran has intervertebral disc syndrome (IVDS) of the thoracolumbar spine, he had not had any incapacitating episodes over the past 12 months due to IVDS. VA and private treatment records and reports of physical evaluation of the Veteran's thoracolumbar spine do not document any periods of incapacitating episodes of IVDS at any time during the claim. Accordingly, the Veteran's chronic low back strain, degenerative disc disease, and lumbar facet disease does not meet the criteria for the assignment of the next-higher 60 percent evaluation on the basis of intervertebral disc syndrome with incapacitating episodes. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's thoracolumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the VA examination reports and reports of private treatment directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. In light of the above, the Board finds that the Veteran is not entitled a disability rating in excess of 40 percent for his service-connected chronic low back strain, degenerative disc disease and facet degenerative joint disease at any time during the claim. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for increase must be denied. The Board has also considered whether the Veteran's chronic lumbar strain, degenerative joint disease and facet degenerative joint disease disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2014); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Ordinarily, the Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). According to the regulation, an extraschedular rating is warranted upon a finding that 'the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.' 38 C.F.R. § 3.321(b)(1) (2014). Here, the assigned schedular evaluation is not inadequate. Ratings in excess of the 40 percent evaluation currently assigned throughout the duration of the claim are provided for certain manifestations of the service-connected disorder at issue, but the medical evidence reflects that those manifestations are not present in this case. See 38 C.F.R. § 4.1 (2014). Specifically, higher ratings may assigned for disability of the thoracolumbar spine if the evidence of record shows that it is manifested by unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In this case, however, the Veteran's chronic low back strain, degenerative disc disease and facet degenerative joint disease disability is manifested primarily by pain and limitation of motion, manifestations which are clearly contemplated in the rating criteria. Consequently, the Board finds that the rating criteria are adequate to evaluate the Veteran's thoracolumbar spine disability and the criteria for referral for the assignment of an extraschedular evaluation for this disability pursuant to 38 C.F.R. § 3.321(b)(1), are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to service connection for hypertension is granted. New and material evidence sufficient to reopen a previously denied claim for service connection for a heart condition has not been submitted. Restoration of a 40 percent evaluation for chronic low back strain, degenerative disc disease and facet degenerative joint disease is granted, effective April 1, 2014, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a disability rating in excess of 40 percent for chronic low back strain, degenerative disc disease and facet degenerative joint disease is denied. REMAND The Board finds that another remand is necessary prior to final adjudication of the Veteran's claims for service connection for bilateral hearing loss and tinnitus and entitlement to a TDIU. As noted, in July 2008, the Board denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus based on findings that the evidence of record indicated that the Veteran did not have a hearing loss or tinnitus disability during service and he did not experience in-service acoustic trauma or excessive noise exposure. In a February 2010 memorandum decision, the Court set aside and remanded the issues of entitlement to service connection for bilateral hearing loss and tinnitus for readjudication of the claims consistent with the terms of the memorandum decision. The parties agreed that audiometric testing performed during the Veteran's separation physical contained incomplete findings, making it impossible for the Board to conclude that his hearing was within normal limits at that time. The parties also agreed that the Board inappropriately discounted as not credible the Veteran's lay statements and account that an in-service occurrence or injury caused his claimed bilateral hearing loss and tinnitus due to lack of corroboration in his medical records. Consequently, the Board provided an inadequate statement of reasons or basses for failing to provide a VA audiology examination and etiological opinion pertaining to the claimed disabilities. Accordingly, in November 2010, the Board remanded the claims of entitlement to service connection for bilateral hearing loss and tinnitus for additional development-namely, for obtainment of the Veteran's service personnel records for verification of his alleged military noise exposure, and a VA examination to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus disabilities. The Board noted that report of a private August 2005 audiology evaluation and etiological opinion from CAF, AuD., provided evidence of current disability and indication that such are associated with the Veteran's military service. The Board further noted that given that enlistment audiology examination and notations appeared to show a hearing loss disability with notation to "recheck hearing upon induction," the presence of two audiograms in graphical form dated in November 1066 and January 1967 (reported in ASA units and prior to conversion to ISO (ANSI) units), and lack of a complete report of audiometry findings during separation examination in October 1968, it was determined that an audiologist should comment on and interpret in-service audiological findings. The remand directives explicitly stated that the Veteran must be given adequate notice of the date and place of any requested examination and that a copy of all notifications, including the address where the notice was sent, must be associated with the claims file. A VA audiology examination was requested in March 2011. A March 2011 notice letter from the RO notified the Veteran that it had requested that a local VA facility schedule him for a VA examination in connection with the claims. The letter advised that the facility would notify him of the date, time, and place of the examination and of the consequences for a failure to report for a scheduled VA examination without good cause. An April 2011 VA medical record states that the Veteran failed to report for an audiology examination in April 1, 2012 and that notification of that examination was sent to his address of record. A VA audiology rating calculator worksheet dated in October 2011 contains audiometric findings documented in report of an August 2005 private audiological evaluation and notes that service connection for hearing loss is denied due to lack of in-service and post-service findings of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In the November 2011 SSOC, the AMC continued the denials of service connection for bilateral hearing loss and tinnitus based, in part, on the Veteran's failure to report for the scheduled VA examination. Although there is a copy of the examination inquiry in the claims file, there is no copy of the examination notice that was sent to the Veteran as directed in the Board remand. Thus, it is simply unclear whether the Veteran was properly notified of the scheduled VA audiology examination. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010) which involved the presumption of regularity in notification of VA examinations). The Board is aware of 38 C.F.R. § 3.655 regarding action to be taken when a Veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination. 38 C.F.R. §§ 3.655(a), (b). However, based on the above, in consideration of Kyhn, and in an effort to ensure that all reasonable attempts to schedule and notify the Veteran of his scheduled VA examination, a remand is necessary to afford the Veteran another opportunity to appear for the requested VA audiology examination which is necessary to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus disabilities. The Board also finds that the Veteran's claim of entitlement to a TDIU is inextricably intertwined with the remanded claim for service connection for bilateral hearing loss and tinnitus disabilities. In that regard, the VA medical opinions of record pertaining to occupational effects of the Veteran's service-connected disabilities suggest that while the Veteran's service-connected disabilities have significant effects on his occupational functioning due physical limitations, his service connected disabilities, when considered in conjunction with his occupational and educational history, do not prevent him from obtaining or maintaining substantially gainful employment. Given that the outcome of the Veteran's claims for service connection for bilateral hearing loss and tinnitus may affect the determination as to whether the Veteran's service-connected disabilities prevent him from obtaining or maintaining a substantially gainful occupation, his claim for entitlement to a TDIU is inextricably intertwined with his claims for service connection for bilateral hearing loss and tinnitus and must be deferred pending readjudication of those claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all audiology care providers, VA and non-VA, who have documented complaints and findings and/or treated him for his claimed bilateral hearing loss and tinnitus disabilities since his discharge from military service. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Regardless of the Veteran's response, obtain and associate with the claims file any VA treatment records and diagnostic studies from all VA facilities identified by the Veteran and in the record, to include ongoing treatment records from the Nebraska-Western Iowa VA Health Care System, to include any records or any medical and audiological treatment and evaluations performed at the Omaha VAMC and Norfolk CBOC dating since January 2014. Appropriate steps should be taken to obtain any identified records and all attempts to obtain treatment records should be documented in the claims folder. If any records identified by the Veteran and in the record cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his attorney are be notified of unsuccessful efforts in that regard, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Notify the Veteran and his attorney that they may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms of hearing loss and tinnitus. He should be provided an appropriate amount of time for response. 3. After the above development has been completed to the extent possible, schedule the Veteran for a VA audiological examination with an audiologist to determine the nature and etiology of any current hearing loss and tinnitus. It is imperative that the Veteran and his attorney be given appropriate notice of the scheduled examination and documentation of this must be placed in the claims file. The Veteran's Virtual VA and VBMS electronic claims files, to include a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination and the examination report should reflect that such review was made. The examiner should elicit from the Veteran a complete history of his claimed hearing loss and tinnitus disabilities, to include history of any military, occupational and recreational noise exposure and the date of onset, circumstances, and nature of any current hearing loss and tinnitus, which should be documented in the examination report. In that regard, the examiner should acknowledge that the Veteran's service personnel records show a pre-service civilian occupation as a department store stockman for one year, completion of combat training in January 1967, military occupations of Medical Corpsman and Ambulance Driver assigned to artillery and armor units from June 1967, and awards for M-14 Rifle qualification as a marksman (March 1967) and expert (November 1967). The examiner is requested to review the Veteran's service treatment records (received October 27, 1969), to include the November 1966 reports of medical history and examination for induction with audiological findings and notation of defective hearing and a H2 physical profile; audiometric findings in graphical format dated November 16, 1966, and January 18, 1967; and October 1968 reports of medical history and examination for separation. As to the audiometric findings dated in November 1966 and January 1967, the examiner should document the decibel of hearing in both ears at each frequency from 500 to 6000 Hertz in ASA units and following conversion to ISO (ANSI) units. As to audiometric findings documented in report of October 1968 separation examination, the examiner should comment as to whether it appears that an audiologic examination was performed, and if so, whether reported audiometric findings are complete. The examiner should also state whether comparison of in-service audiometric findings is reflective of a shift in hearing thresholds at any frequency during service. All tests deemed necessary, to include puretone audiology and Maryland CNC speech discrimination testing must be performed and the results reported in detail. Following a review of the paper and electronic claims files, the Veteran's contentions, and audiologic examination, identify whether the Veteran has current hearing loss and/or tinnitus disabilities. If so, provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current hearing loss and tinnitus disability is etiologically related to any incident of the Veteran's military service, to include any noise exposure therein. The examiner should acknowledge and discuss July 2005 private audiometric findings, Dr. CAF's August 2005 statement and opinion relating any hearing loss to the Veteran's reported in-service history of military noise exposure, and an August 2005 tinnitus questionnaire (see VBMS "Correspondence" and "3rd Party Correspondence" received August 22, 2005). The examiner must provide and discuss the rationale for all stated opinions, whether favorable or unfavorable, and reconcile all stated opinions with any contradictory evidence of record, citing to specific evidence in the file, if necessary. 4. Review the claims folder to ensure that the foregoing requested development has been completed and that the requested examination report is in compliance with the directives of this remand. If not, corrective procedures should be implemented. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above, and any other development deemed necessary, readjudicate the claims of entitlement to service for bilateral hearing loss and tinnitus and entitlement to a TDIU. If any benefit sought remains denied, issue the Veteran and his attorney a supplemental statement of the case and allow an appropriate period of time for response before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs